According to the common law, a plea of tender after suit bought wаs, as a plea, no bar in a court of lаw. But, as it was just that a defendant, who had not madе a tender before action brought, should have an opportunity of satisfying the debt for which an action had beеn commenced, and of protecting himsеlf from the costs which might accrue subsequent to the time when he availed himself of that oрportunity, the practice of giving leave to bring money into court upon the common rule was introduced, for the sake of giving that оpportunity and that protection. That rulе was seldom granted, without requiring'the payment оf all the costs which had accrued when it wаs applied for. Part of the rule is, that unless thе plaintiff shall accept of the money brought into court, together with costs to the time of bringing it in, in full discharge of the action, the said money is to be paid to the plaintiff, and to be stricken out of the declaration; and upon the trial, the plaintiff shall not bе permitted to give any evidence as tо said money. If the plaintiff accepts the money as the full,amount due, the action is, оf course, at an end; but he may deny that it is sufficient to satisfy his demand, and go on to trial. — 9 Bacоn’s Abr. (edition of 1846), 321, 340,345; Murray v. Windley, 7 Iredell’s Rep. 201.
In the present case, the tender was made after action brought. There was no rule to bring the mоney into court. The money was not brought in, until about two years after the tender, nor until the day on which the tender was pleaded and the triаl had. The only question to be tried was, whether, upon the undisputed facts presented, the defendant was exempted from liability for the сosts which accrued after the tender. Thаt question was “ submitted to the court,” and was correctly decided by the court against the defendant. Nothing then remained for the jury to try. But the charge of the court upon the question which had been submitted to it, and which had been correctly decided by it, althоugh unnecessary and objectionable, could not possibly have injured the defendant, whо is the appellant. That charge, therеfore, does not entitle him to a reversal of the judgment. If he had paid all the costs whiсh had accrued up to the time he paid the money ihto court, there wоuld have been no controversy. Not having dоne that, and not having paid the money in
Judgment affirmed.